If you're new here, and interested in using social media in the legal profession, you may want to subscribe to the RSS feed or follow us on Twitter @Rex7, @lbergus, and @JoshCamson. Thank you for visiting SocialMediaLawStudent.com.

The federal judiciary recently posted a revised version of the Federal Rules of Evidence to solicit comments on the proposed changes. The revisions, overall, are a tremendous improvement over the current rules. They make the rules easier to read and understand. However, while the goal of these re-styled rules is to avoid any changes in meaning, I think some of the proposed changes will result in a change in meaning.

Rule 404

Original Rule	Proposed Revision
(a) Character evidence generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:	(a) Character Evidence. (1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

We are just looking at the opening clause of Rule 404 here. You’ll notice that the proposed revisions get rid of the phrase “conformity therewith.” In the introductory comments to the revisions, the authors say that they do not want to get rid of any language that is commonly used and understood in reference to certain rules. They give examples like “truth of the matter asserted” in the context of hearsay. I think the phrase “conformity therewith” falls into that category, and it should come back into 404. Its meaning is well settled and understood.

Rule 405(B)

Original Rule	Proposed Revision
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct.	(b) By Specific Instances of Conduct. When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

In the proposed rule 405(b), the authors add the word “relevant” to qualify the “specific instances of the person’s conduct.” Previously, the rule read to allow any specific instances of a person’s conduct. Those instances of conduct would have to prove the trait of character in question. However, they need not necessarily be independently relevant to the case at hand. I think there is a risk of changing the meaning of the rule by inserting the “relevant” qualifier. It could be read to mean that the specific conduct must be relevant to the case at hand. So if the rulemakers want to keep “relevant” in the new rule, perhaps it could read “…may also be proved by specific instances of the person’s conduct, relevant to proving the character or trait.”

Rule 412

Original Rule

Proposed Revision

(a) Evidence Generally Inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim’s sexual predisposition. (b) Exceptions. (1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules: (A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury or other physical evidence; (B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (C) evidence the exclusion of which would violate the constitutional rights of the defendant. (2) In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim.

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition. (b) Exceptions. (1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim’s sexual behavior toward the defendant, if offered by the prosecutor or if offered by the defendant to prove consent; and (C) evidence whose exclusion would violate the defendant’s constitutional rights. (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.

As you can see, in Rule 412 the authors removed the term “alleged” that previously qualified “victim.” On my first read-through of the rules, I thought this created a very major change in the rule. However, the new Rule 412(d) reads: “In this rule, “victim” includes an alleged victim. This definition should go at the beginning of the rules with the rest of the definitions. That will make things much clearer.

Rule 608

Original Rule

Proposed Revision

(a) Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused’s or the witness’ privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

(a) Reputation or Opinion Evidence. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross-examined has testified about. (c) Privilege Against Self-Incrimination. A witness does not waive the privilege against self-incrimination by testifying about a matter that relates only to a character for truthfulness.

The restyled version of Rule 608 is particularly helpful. The new version is significantly easier to read and follow, and does not change the meaning of the original rule.

Finally, in Rule 801(d)(2), the authors have removed the term “admissions. They explain:

The term “admissions” is confusing because not all statements covered by the exclusion are admissions in the colloquial sense — a statement can be within the exclusion even if it “admitted” nothing and was not against the party’s interest when made. The term “admissions” also raises confusion in comparison with the Rule 804(b)(3) exception for declarations against interest. No change in application of the exclusion is intended.

Removing the word “admissions” from the hearsay rules was also a very good decision. The committee’s note explaining the confusion inherent in the word “admissions” is spot on.

This brief overview of some of the rules shows the strengths and weaknesses in the revisions. Overall, the strengths greatly outweigh the weaknesses.

Related posts:

1. Podcast Ipsa Loquitur: Who to Blame for Tuition Hikes, the Facebook alibi, and Six Cardinal Rules for Social Media
2. Courts Cracking Down on Jurors
3. Georgia Judge Bans Twitter From Courtroom
4. Notice of Proposed Class Action Settlement Involving Skype Credits
5. Quick Reference: Law Pod for iPhone Provides Rules of Procedure (Update)
6. Texting to the Witness Stand is an “Egregious and Deliberate Attempt to Subvert Our Justice System”
7. Podcast Ipsa Loquitur: New Jury Rules, Legal Comedy Website, and Schools Spying on Students
8. Facebook in the Courts
9. New Jersey Judiciary Now Tweeting
10. How to Identify If You Are Tweeting With a Lawyer